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March 20, 2017
Second delay for pesticide certification rule and four others

In a final rule published in the Federal Register (FR) without opportunity for public comment, the EPA has delayed the effective date of 5 final rules that had been originally scheduled to become effective in February and March 2017. The 5 rules were included in the 30 rules that were delayed by order of Chief of Staff Reince Priebus in a January 20, 2017, White House memo. (See January 26, 2017, FR for the list of 30 delayed EPA rules.) That directive stated that all executive branch departments and agencies must temporarily postpone for 60 days the effective dates of all regulations that had been published in the FR but had not yet taken effect. The temporary postponement ends on March 21, 2017, and the new rule extends the delay for another 62 days, until May 22, 2017, the effective dates of the following 5 rules (listed with their original effective dates):

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  • Addition of a subsurface intrusion component to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazard ranking system—February 8, 2017
  • Formaldehyde emissions standards for composite wood products—February 10, 2017
  • Revisions to the Guideline on Air Quality Models: enhancements to the AERMOD dispersion modeling system and incorporation of approaches to address ozone and fine particulate matter—February 16, 2017
  • Pesticides; certification of pesticide applicators—March 6, 2017
  • Consolidated rules of practice governing the administrative assessment of civil penalties, issuance of compliance or corrective action orders, and the revocation/termination or suspension of permits; procedures for decision making—March 10, 2017

Also included in the list of 30 delayed rules were EPA’s amendments to its CAA Risk Management Plan (RMP) regulations (January 13, 2017, FR). On March 13, 2017, EPA Administrator Scott Pruitt convened a proceeding for reconsideration of those amendments. Three days later, the EPA published a final rule (March 16, 2017, FR) that provides a 90-day administrative stay of the effective date of the RMP amendments, delaying that date to June 19, 2017.

Incoming EPA officials

According to the EPA, the second delay for the five rules gives recently arrived Agency officials the opportunity to learn more about the regulations and decide whether they would like to conduct a substantive review of any of those regulations.

“If Agency officials decide to conduct a substantive review of any of those regulations, EPA will take appropriate actions to conduct such a review, including, but not limited to, issuing a document in the Federal Register addressing any further delay of the effective date of such regulation,” says the Agency. “If Agency officials decide not to conduct a substantive review of a regulation listed in the [final rule], it will become effective on May 22, 2017.”

The EPA says that when the first delay was announced, the Agency believed that 60 days would be sufficient time for incoming Agency officials to review rules recently promulgated by the EPA.

“However, given the length of the confirmation process for the EPA Administrator and the fact that the Agency lacks Senate-confirmed officials elsewhere, the new Administration has not had the time contemplated by the January 20 Memo for this review,” states the EPA.

APA exception

The Agency adds that the absence of the officials needed to review the rules constitute circumstances beyond EPA’s control. Furthermore, the Agency believes that seeking public comment on the second delay would be impracticable, unnecessary, and contrary to the public interest. Under such “good cause” circumstances, the Administrative Procedures Act (APA) allows an agency to issue a rule without opportunity for public comment.

The final second-delay rule was published in the March 20, 2017, FR.

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